What does disclosure mean?

You have a positive duty to disclose to the other side ALL the documents in your possession or control that are directly relevant to the issues that are in dispute.

That is, you MUST make disclosure in the proceedings. Contrary to what you may see on TV or in movies, you cannot hide a document from the other side until trial or deliberately withhold documents because they hurt your case.

Whilst the duty to disclose usually happens at a certain stage in the legal proceedings it does not stop until the trial ends. So any new documents created or old documents you happen to find later on must also be disclosed to the other side as soon as possible after you discover them.

What is a document?

The definition of what comprises a ‘document’ for the purpose of legal proceedings is likely wider than you think. A document includes:

Any paper or other material on which there is writing;

Any paper or other material on which there are marks, figures, symbols or perforations;

Any disc, tape or other article or any material from which sounds, images, writings or messages are capable of being produced or reproduced; and

Any file that is in electronic form.

What is in my possession or control?

Just because you don’t have the document to hand or didn’t create it doesn’t mean you escape the duty to disclose it. You may need to go to some effort to obtain it. A document is in your ‘possession or control’ even if;

You did not create the document but have possession of it;

You only possess or control a copy of the document (i.e you don’t have the original); or

You don’t have physical possession but are able to retrieve the document from a third party by directing them to give you the document (for example, bank/credit card statements).

What is a relevant document?

Whilst it may go against your natural instincts, a document is ‘relevant’ if;

It can be used to help prove your case against the other side; or

It can be used to disprove your case against the other side.

That is, it is any document that is good for you and bad for you for a particular issue in the legal proceedings. Remember, if you both admit that something happened then there is no need to disclose documents related to that thing, the court will accept the joint admission that the thing di happen, purely for the purpose of the legal proceedings.

How do you perform disclosure?

In Queensland, you can disclose a document a number of ways. The simplest, is to simply send the other side a copy of every document you want to disclose.

However, the most usual way disclosure is performed is with the production of a list of documents that you complete and issue to the other side. They will then reply asking you to provide a copy of the particular documents in the list that they wish for you to disclose to them.

The Queensland Court’s have produced a basic template list of documents for use by parties which can be downloaded here.

How can we help?

We only deal with civil claims and therefore deal with disclosure day in day out. If we’re engaged to deal with your civil litigation then we obviously perform disclosure on your behalf, but if you are trying to run your own case or have a question on relevance or procedure we can always help on a piecemeal basis.

DISCLAIMER: The above article was written at a specific point in time in the past and is provided as general guidance only. It is not intended to be specific legal advice to any person’s particular circumstances who may be reading it. We do not recommend you use this article as a replacement for obtaining proper legal advice on your issue and encourage anyone reading the article to obtain legal advice to ensure the above information and guidance remains valid and suits your particular circumstance. In our experience, there is no ‘one size fits all’ to legal problems!